The Civil War Continues

In 1866, Congress proposed the Fourteenth Amendment, Section 1 of which was designed to force the states, and in particular the Southern states, to recognize equal civil rights for all, and in particular for the newly freed slaves. That Section, which is unambiguously the most important part of the current Constitution, has four operative provisions. The first overturns Dred Scott v. Sandford and declares that, yes, African-Americans are citizens of the United States. The second prohibits states from violating the privileges or immunities of American citizens. The third prevents them from depriving anyone of life, liberty, or property without due process of law, and the last requires them to provide the equal protection of their laws. These four provisions are, in essence, the terms of settlement of the Civil War.

And in that settlement, as it was originally supposed to work, it was the first two Clauses that were supposed to do most of the work of guaranteeing substantive legal equality. After all, if blacks are citizens and you can't violate the rights of citizens, well, that sounds like black people have rights. Alas the Court has basically pretended that the second provision doesn't exist and that the first one has only a narrow technical meaning rather than a richer substantive one. As a result, the last two provisions are carrying a lot of weight they weren't originally meant to; the Equal Protection Clause in particular is the central doctrinal lynch-pin for just about all of the Court's equality jurisprudence. But the reason why it's there at all, back when they thought the Privileges or Immunities Clause was a thing, was because the Privileges or Immunities Clause addressed itself only to legislatures. But everyone knew that a Southern state could write the world's most even-handed, non-discriminatory legal code and yet legally entrench massive racial oppression, by the simple device of not enforcing those equal laws equally. The paradigm example of this would be a Southern state simply not punishing people who murdered black people.

Hmmm, where have I heard that before? Or, rather, where have I heard that since?

The thing about the Civil War is that it never really ended. We stopped having battles with armies but the central question that the Fourteenth Amendment was meant to settle as the terms of the peace, the question of whether black people are full and equal members of American society, has never quite been resolved. And not just legally: Michael Brown and Eric Garner are just among the latest Civil War casualties. And the failure to punish their killers isn't just racism, it isn't just institutionalized racism, it is quite literally unreconstructed institutional racism, in the very precise sense of being the exact problem that the key Reconstruction Amendment was meant to eradicate. Having this not happen is what we fought that war over. And that means we're still fighting.